General Guide to Environmental Legislation in the UK

General Guide to Environmental Legislation in the UK

Much of environmental legislation in the UK is the product of European Directives, often as amendments to existing legislation found in common law. The basis or foundation of common law provides the enforcement necessary to prosecute, but tort (the case of one injured party claiming a lack of duty of care from another party) fails to establish a duty of care in environmental protection. In terms of environmental protection, establishing a lack of duty of care, in that there is a clear link between causation and fault, is extremely difficult. It also followed that existing common law at the time could only equip the courts with measures to remedy environmental damage after it had be caused – not to prevent future damage.

Modern UK environmental law started in the 19th century with the establishment of the Alkali Act 1863, to regulate atmospheric emissions from factories, Rivers Pollution Act 1876 and the Public Health Act 1875, to prevent environmental damage. These Acts established, for the first time, the preventative measures necessary to protect the environment. Latter day legislation, particularly in the 20th century, established environmental protection in areas like towns, rural and wildlife and the work places, as well as more specific areas like radioactivity and hazardous substances (Radioactive Substances Act 1993, Planning (Hazardous Substances) Act 1990). Provisions for the protection of rural areas and of wildlife were given in the Wildlife and Countryside Act 1981 (amended). This Act sought to protect wildlife and their habitats by establishing Sites of Special Scientific Interest (SSSI), thereby granting international environmental protection.

There are two key statutes (law derived from government, rather than from case law or legal authorities) that are specific to environmental protection: the Environmental Protection Act (EPA) 1990 and the Environment Act (EA) 1995. Section 1 of the Environmental Protection Act 1990 provides the definition of ‘the environment’, ‘pollution’ and ‘harm’, terms that are commonly used today. The EPA also adopted an integrated approach to pollution control, recognising that the legal framework must encompass the environment as a whole, not as individual areas like land, water and air. It is important to note, the rise (and continues to) of environmental non-governmental organisations (NGOs), such as Greenpeace, Friends of the Earth and the World Wide Fund for Nature (WWF), their part in raising the publics attention to environmental issues, and their political engagement in influencing government policy.

The Environment Protection Act sets out to regulate and control all aspects of waste, legally defined as controlled waste. Under the integrated approach principle, all wastes (land, air and water) are covered and failure to properly handle, treat or dispose of these wastes, can lead to criminal prosecutions. This act established waste management systems and the licences to mandate proper control, also granting local authorities the duty to make arrangements for disposal and recycling of wastes. Part VI of the act sets out a statutory notification and risk assessment for genetically modified organisms (GMO), in all aspects of their use in relation to possible environmental damage. Even though the environmental damage is largely unknown, the precautionary principle, with which this act and all subsequent acts of parliament are based on, attempts to shift the burden of proof on to the polluting party and require that party to establish that their activity will not cause harm. This principle is currently being applied in the REACH regulations (Registration, Evaluation, Authorisation & restriction of Chemicals), at great cost to chemical manufacturers, in the regulation of chemical products that are hazardous to the environment through indirect efficacy studies.

The Environment Act 1995 established the non-departmental agency, the Environment Agency, with the lofty aim to ‘protect and improve the environment’. This act of parliament integrated pollution control and regulation, in all areas, under one central body, with the authority to bring criminal prosecutions. Also in addition, the environment agency is responsible for flood prevention and control, the environmental duties relating to SSSIs and regional and local fisheries.

The Environment Act 1995 also established the National Parks Authorities in England and Wales. Giving the National Park Authorities planning authority powers under national parks legislation and the Wildlife and Countryside Act 1981.

Rafael Cobos